Supreme Court Reform Bill

An interesting but unlikely-to-pass bill is about to be introduced.

Reuters (“Democrats prepare bill limiting U.S. Supreme Court justice terms to 18 years“):

Democrats in of the House of Representatives will introduce a bill next week to limit the tenure of U.S. Supreme Court justices to 18 years from current lifetime appointments, in a bid to reduce partisan warring over vacancies and preserve the court’s legitimacy.

The new bill, seen by Reuters, would allow every president to nominate two justices per four-year term and comes amid heightened political tensions as Republican President Donald Trump prepares to announce his third pick for the Supreme Court after the death on Sept. 18 of Justice Ruth Bader Ginsburg, with just 40 days to go until the Nov. 3 election.

“It would save the country a lot of agony and help lower the temperature over fights for the court that go to the fault lines of cultural issues and is one of the primary things tearing at our social fabric,” said California U.S. Representative Ro Khanna, who plans to introduce the legislation on Tuesday, along with Representatives Joe Kennedy III of Massachusetts and Don Beyer of Virginia.

Don Beyer, owner of a string of car dealerships, was my Congressman until I moved to a new district last year. The rationale for the bill strikes me as reasonable enough:

Partly due to rising life expectancies, justices serve increasingly long tenures, on average now more than 25 years.

Term limits for high court justices have for years had support from a number of legal scholars on both the right and the left. Several polls in recent years have also shown large majorities of the American public support term limits.

The bill – the Supreme Court Term Limits and Regular Appointments Act – is the first to try to set Supreme Court term limits by statute, according to Gabe Roth, the executive director of Fix the Court, a judicial transparency group whose campaign for high court term limits has been gaining attention.

But, alas, as soon as I saw the Reuters headline I identified a rather glaring problem:

Some legal observers, including those who favor term limits, say they must be accomplished through an amendment to the U.S. Constitution, which has been interpreted as requiring life tenure for federal judges and justices.

I think it’s more than “some legal observers.” Article III, Section 1 of the Constitution states plainly: “The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.” While there are scholars who argue that “during good behaviour” does not equate to a lifetime appointment, they’re in a distinct minority.

Regardless,

The bill seeks to avoid constitutional concerns by exempting current justices from the 18-year rule. Those appointed under term limits would become “senior” upon retirement and rotate to lower courts.

“That’s perfectly consistent with their judicial independence and having a lifetime salary and a lifetime appointment,” Khanna said.

Presuming the bill passed the House, the Senate, and got signed by the President—whether in this session or a potential all-Democratic version of those bodies next year, we could I suppose test that proposition in the courts. But one presumes judges and justices who thought they had lifetime appointments would read the text of the Constitution in the way we have since its inception.

Getting past the Constitutional question, I would prefer 18-year terms to lifetime ones. First, because of predictability. Second, because there’s some absurdity to Justices appointed by Presidents who have long since died continuing to have such outsized power in our system decades after confirmation. Third, because there’s good reason to wonder whether octogenarian Justices are up to the job. And, fourth, because it would perhaps encourage the appointment of somewhat more experienced people to the bench, rather than striving to appoint those who will live the longest.

That said, I don’t know that an 18-year term would really change all that much. That is, after all, longer than two two-term Presidencies and equal to three six-year Senate terms and nine two-year House terms. So, it wouldn’t do much to ratchet down the magnitude of each confirmation. The agony and temperature would barely change at all.

I haven’t thought as much about the provision to allow “every president to nominate two justices per four-year term” but I rather like it in the abstract—especially if it’s done prospectively. Doing so this close to an election in which one candidate is far ahead of the other heightens the partisan feel but the principle strikes me as reasonable. Jimmy Carter got no appointments at all in his term of office. Neither George W. Bush in his first term. Meanwhile, Donald Trump looks to get three.

The combination of the two reforms—again, leaving aside for now the Constitutional hurdle—would certainly change our traditions considerably. It would, for a time, potentially increase the size of the Supreme Court rather significantly in the short run, since it would probably expand faster than current Justices would retire.

Additionally, not having seen the bill itself, it’s not clear whether the two appointments per Presidential term is the baseline or if it’s also the ceiling. Otherwise, there’s still the factor of Justices timing their retirements for partisan ends. Indeed, that could happen even once—decades from now—all of the current Justices retired. I could easily imagine a Justice at the 16-year mark going ahead and retiring early so that a President of her party could appoint the replacement.

FILED UNDER: Congress, Law and the Courts, U.S. Constitution, US Politics
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Mu Yixiao says:

    SCTLRA Act?

    I’m sorry. I can’t support any legislation that doesn’t have a cute acronym.

    Maybe if they renamed it the Supreme Court Optimum Term Utilization Scheme Act…. ?

    ETA: You fixed the glitch with the Edit and Formatting features. Yay!

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  2. Michael Reynolds says:

    If I’m reading that right the requirement is lifetime pay, not lifetime service. Justice emeritus – enjoy your salary, go fishing.

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  3. SKI says:

    Similar proposals I’ve seen have suggested dealing with the lifetime issue by granting them lifetime judgeships but limited periods on SCOTUS. That is, they get demoted to a lower court at the end of their term but maintain being an Article II Judge.

    I’m skeptical of them all.

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  4. HarvardLaw92 says:

    This is one of the reasons why Congress has an approval rating which is in the toilet – they engage in pointless theater instead of doing their jobs.

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  5. Michael Reynolds says:

    @HarvardLaw92:
    How do you propose they ‘do their job’ when there is zero chance of useful legislation even being taken up by the Senate?

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  6. SKI says:

    @HarvardLaw92: Or, more to Michael Reynolds:’s point, given the House has passed 400+ bills that are languishing on McConnell’s desk, why do you think they haven’t been doing their jobs?

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  7. HarvardLaw92 says:

    @Michael Reynolds:

    It has to begin by example if nothing else. Effectively saying “well, it’s broken, so we might as join the fun” is pointless. The takeaway is “they’re just as fk’ed up as the current bunch of Republicans”. If nothing else, the comparison serves to illustrate where the problem really lies.

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  8. Michael Reynolds says:

    @HarvardLaw92:
    What? What are you talking about? As @SKI points out, Democrats have been doing their job. So, they’re just as guilty as the Republicans who obstruct everything? You aren’t making sense.

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  9. James Joyner says:

    @Michael Reynolds:

    If I’m reading that right the requirement is lifetime pay, not lifetime service. Justice emeritus – enjoy your salary, go fishing.

    While I hesistate to challenge a professional writer on matters of reading comprehension, I’m not sure how to read, “The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office” as not requiring two, separate things.

    As a matter of public policy, eighteen years in the gig followed by full pay until death strikes me as a sweet, sweet deal. But I can’t think of an accepted mode of constitutional interpretation that would arrive at the conclusion that it’s what that passage means.

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  10. HarvardLaw92 says:

    @SKI:

    No argument, but … tell me how many of those 400+ bills were legitimate, considered legislation aimed at actually achieving an outcome and how many of them were in this same vein of theater.

    If you want to demonstrate that the whole institution isn’t broken, and demonstrate that it’s possible to fix it, then that has to start by one side attempting to legitimately govern as opposed to electoral theatrics. Otherwise let’s all just admit that the electorate itself is the problem and the concept of deliberative, considered government accomplished through reasonable compromise as we’ve historically known it is dead and gone.

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  11. Kathy says:

    Article III, Section 1 of the Constitution states plainly: “The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.”

    And that’s why the solution will begin by packing the court.

    Passing amendments to the Constitution is next to impossible, particularly in politically charged matters. therefore the Court cannot be reformed reasonably, therefore it will have to be reformed less reasonably.

    I would favor a law mandating hearings and a vote in the Senate for all presidential nominees within 60 days of the nomination, as well as one precluding the president from nominating any judges from 90 days before the general election and until the next Congress goes into session.

    Also, there is one big feature in lifetime appointments: independence. Perhaps not so much for Federal judges per se, but certainly so for Supreme Court Justices.

    A seat at the Supreme Court is the absolute pinnacle of a judicial career. Other than Chief Justice, there’s no higher post. This means all Justices are immune from political interference, they won’t be looking for a next stage in their careers (not most of them).

    Introduce terms, and there’s the prospect of courting political favor for one’s next career move.

    This assumes basic rule of law and respect for the law. If the president can call a Justice to the Oval Office and show them the gun he’s gonna shoot them with if they don’t vote correctly, then there’s no point. Or if he can just order the AG to arrest any Justice who displeases him (think it can’t happen?)

    I don’t object to term limits per se. But there are downsides to everything, and all imaginable consequences should be considered.

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  12. HarvardLaw92 says:

    @Kathy:

    Such a law (mandatory hearings and a vote) would violate Article I, but I agree with the sentiment.

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  13. HarvardLaw92 says:

    @Michael Reynolds:

    Article III directs both of them. They’re independent mandates.

    *I see James already addressed this *

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  14. @HarvardLaw92:

    tell me how many of those 400+ bills were legitimate, considered legislation aimed at actually achieving an outcome and how many of them were in this same vein of theater.

    No doubt some of them are theater (probably a lot of them).

    But, let’s assume that 75% of them are theater (which is likely really high). The fact that the remaining 100ish are also being ignored by the Senate underscores a problem.

    It is fully reasonable that the GOP-held Senate would not want to pass Dem-created bills without changes. What isn’t reasonable is that they do not produce counter-proposals Of course, they don’t have to, but the fact that they don’t is where the problem lies.

    And I would argue this proposal, which will help educate the public in possibilities, isn’t theater.

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  15. @Kathy:

    And that’s why the solution will begin by packing the court.

    Indeed. One of the reasons I have come around to expanding the court is that such actions could spark actual reform.

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  16. SKI says:

    @HarvardLaw92:

    No argument, but … tell me how many of those 400+ bills were legitimate, considered legislation aimed at actually achieving an outcome and how many of them were in this same vein of theater.

    Certainly not all of them but many were very substantive. You want to say dozens instead of hundreds? Fine. More to the point, they addressed actual issues.

    Now the Republicans, or you, may not agree with the solutions proposed but (a) that doesn’t make them non-substantive or mere theater and (b) the Republicans haven’t and won’t propose their substantive solutions to the same issues.

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  17. MarkedMan says:

    One unintended consequence of this bill would be pressure on judges in the 14-18 year range to resign so their replacement can be appointed by a President of their own party. There isn’t much incentive you can offer an octogenarian, but someone who is, say, 60 or 65 could have a decade or two on the wingnut welfare train (or the far less lucrative Democratic version), maybe even an appointment as AG or similar. I’m sure the Koch/Mercer/Walton/etc billionaire hobbyists would make it clear such a resignation could be very very lucrative.

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  18. wr says:

    @HarvardLaw92: “No argument, but … tell me how many of those 400+ bills were legitimate, considered legislation aimed at actually achieving an outcome and how many of them were in this same vein of theater.”

    Why don’t you do the research and then come back to us when you have the information? You’re the one who claims Congress is just showboating, and yet you expect us to prove you wrong? The fact that I comment here as frequently as I do shows I’m not above wasting time… but this would be too much even for me.

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  19. HarvardLaw92 says:

    @Steven L. Taylor:

    And yet the electorate largely keeps sending the same people back to Congress, cycle after cycle, or worse replacing them with more partisan challengers, which hints at my broader point – maybe it’s time we admit (or begin to consider) that the whole thing – this concept of deliberative government predicated on a deliberative electorate exercising prudent judgment – is just broken beyond repair? The only other alternative is that it isn’t, but Dems are doing a shitty job with messaging. At this point, I’m admittedly on the fence with those two possibilities.

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  20. HarvardLaw92 says:

    @wr:

    I didn’t bring them up as a supportive example, ergo it’s not my responsibility to have done the legwork to establish that they support my point. I asked the person who does bear that responsibility to validate the assertion.

    Is “accept anything we assert as being gospel truth unless you can disprove it” really all you have to come back with here? If so, weak sauce …

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  21. gVOR08 says:

    The Constitutional provision means whatever the then seated SCOTUS says it means. And that SCOTUS would likely be 5 Republican appointed conservative Justices plus Roberts or not. Anti-majoritarianism will be upheld.

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  22. HarvardLaw92 says:

    Anyhoo, getting back to the actual topic instead of some “my team good, their team bad” pissing match, the constitutional options that are in the realm of the possible here devolve to one – packing the court. Everything else that’s being bandied around – terms limits, etc. – will require amendments that have no hope of being ratified in this climate. Focus on what’s doable.

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  23. Sleeping Dog says:

    yesterday’s open forum had an opinion piece from Yahoo news on just this topic

    https://www.outsidethebeltway.com/thursdays-forum-28/#comment-2547623

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  24. JohnMcC says:

    My choice for methods to reform the court would, like our friend Kathy says, would begin with packing it. And the ‘original’ method — the FDR proposal from the 30s — was to appoint another new justice for every justice over 70 yrs of age. No Constitutional issues. Totally predictable.

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  25. HarvardLaw92 says:

    @Michael Reynolds:

    Ro Khanna is a Yale JD. He well knows that what his bill is proposing doesn’t pass constitutional muster – or to be blunt about it, he’s deliberately floating a bill for consideration that is unconstitutional on its face. This is 1L territory and he’s a bright guy, so what is he doing here if not engaging in theater?

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  26. MarkedMan says:

    @HarvardLaw92: “Political Theater” implies no practical intent, and I don’t think we know that is true here. Years ago I read a book (I swear it was called “The Bill” but I can’t find it) about efforts to reform the the way student loans were handled in order to reduce cost for the students. This was during the Clinton years I believe. In any case the dance of competing bills, amendments was amazing, with sometimes significant effort put into a dead end because one party needed to show another party good faith effort in their pet idea in order to get buy in.

    I’m no lawyer, but I assume there are many motions filed that have almost no chance of being accepted but nonetheless have legitimate tactical or strategic value.

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  27. Michael Reynolds says:

    @James Joyner:

    While I hesistate to challenge a professional writer on matters of reading comprehension,

    On the contrary, feel free, I can be pretty lazy.

    shall hold their offices

    Hold, not perform. One could hold an office, be paid for an office, and yet be part of a rotation system that moved you onto less complex or controversial cases, for example.

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  28. HarvardLaw92 says:

    @JohnMcC:

    It’s easier to sell as being justifiable if you align the number of justices with the number of circuits and split the 9th Circuit in the package (The 9th is far too large & unwieldy, so splitting it has needed to happen for a long time now, court packing or not).

    That gets you to 14, which obviously isn’t workable, so you further split the 6th into two circuits by taking WV from the 4th and making MI/OH/WV the 6th and creating a new circuit by taking AR from the 8th and joining it with KY and TN. Presto, you’re at 15, and you’ve created a situation where there is no defensible rationale for increasing it further (the next two most populous circuits comparable to the 6th – the 5th and the 11th – are both comprised of just three states and do not lend themselves to being split). Meanwhile, the whole exercise is entirely defensible (and sellable) as balancing the judiciary. It’ll certainly win you some fans in the parts of the former 9th that aren’t CA/OR/WA.

    (Yes, I’ve been deliberating over this scheme long before this current brouhaha sprung up).

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  29. Michael Reynolds says:

    @HarvardLaw92:

    what is he doing here if not engaging in theater?

    Is this the first time you’ve noticed an element of theater in politics?

    Congress has a low rating in polls because Congress is Republican and Democratic, and Republicans who are polled hate the Dems and the polled Dems hate the Repubs. It’s pretty much always in negative territory, a consequence of divided government and polarization.

    (And now the formatting is blown, did that blockquote by hand.)

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  30. HarvardLaw92 says:

    @Michael Reynolds:

    No. You can’t reassign Supreme Court justices to a different. They hold the office for which they were confirmed by the Senate for life or until they decide to leave, unless impeached and removed by Congress.

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  31. HarvardLaw92 says:

    @Michael Reynolds:

    Exactly my earlier point – Congress is broken because the electorate on which the whole grand experiment set into motion by the Founders is broken. At this point, it has degenerated into two spouses who loathe each other but tell themselves they’re staying together for the benefit of the children. Everybody loses, so maybe it’s time for them to have a realistic conversation about it.

    Whether that’s with a counselor or an attorney is the question. Is it salvageable?

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  32. JohnMcC says:

    @HarvardLaw92: I cited your idea (previously mentioned on these pages) of increasing the Court to equal the number of Circuits; I believe it was 13 — I won’t go back to check so forgive me if I’ve got that wrong. Wonderfully logical and Constitutional. Adding some reformation of the Circuits themselves in the same Act is also logical.

    Then I was reminded of the FDR plan and it’s simplicity seems appealing.

    Would not be disappointed in either plan being passed. In a Congress that would put Supremes on the Bench who can feel at home in a nation of great diversity and equality.

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  33. Scott F. says:

    @HarvardLaw92: Some theater is spectacle meant to entertain or provide escape. Other theater reveals ineffable truths better than any other medium.

    As Steven notes, if the bill proposed by Khanna, Kennedy and Beyer starts a conversation to challenge what is immutable about our courts and why, it strikes me a meaningful application of theatrics.

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  34. JohnMcC says:

    @JohnMcC: Edit seems to have disappeared. Could have made that read a little better….

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  35. James Joyner says:

    @MarkedMan:

    One unintended consequence of this bill would be pressure on judges in the 14-18 year range to resign so their replacement can be appointed by a President of their own party.

    Yes. I addressed this, at least obliquely, in the OP. I think this only works if each Presidential term comes with two and only two appointments, regardless of vacancies that may arise.

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  36. HarvardLaw92 says:

    @JohnMcC:

    To be honest about it, I’m not convinced that FDR ever actually expected his packing proposal to happen. He used it as a cudgel to coerce a reluctant segment of Congress to go along with the New Deal. That intent was pretty blatantly obvious to all concerned I think.

    It worked because the folks involved still valued some sort of deliberative government. Those days are gone. We have to be focused on actually packing the court, and doing so in a way that is not only defensible (we still have to sell this to an electorate that’ll be voting again in two years), but also creates a new status quo which doesn’t lend itself to easily being carried further by a subsequent Republican Congress (else why bother stacking the deck in the first place?)

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  37. HarvardLaw92 says:

    @Scott F.:

    Legitimate question: a conversation along whom?

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  38. James Joyner says:

    @Michael Reynolds:

    Hold, not perform. One could hold an office, be paid for an office, and yet be part of a rotation system that moved you onto less complex or controversial cases, for example.

    While not the conventional understanding, I don’t know that it’s ever been tested in court. But, as noted in the OP, I can’t imagine judges who thought they held lifetime appointments being predisposed to the idea of Congress overturning the conventional understanding by simple legislation.

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  39. Michael Reynolds says:

    @HarvardLaw92:

    “The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.”

    I don’t think that’s cut and dried. Holding an office is not the same as performing the duties of the office. If a justice is incapacitated, she continues to hold the office and be paid, yet not perform. There’s a distinction between hold and perform. A justice could continue to hold and be paid yet refuse for reasons of her own to perform. Also, the Chief has the power to assign cases, or not, which tells me the ‘perform’ isn’t unlimited in current practice and that court rules can limit a justice’s performance beyond merely concurring or dissenting, while not being able to expel a justice or cut off their salary.

    Serious question, given that the justices have only the same rights as lower court judges, aren’t federal judges effectively sidelined at times? There’s no, give Judge Fudd the easy cases? Or let’s lighten ole’ Fudd’s case load, wink wink? If so then don’t we already have a gap between hold and perform?

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  40. Kathy says:

    @JohnMcC:

    That would be a good idea right now. There are three Justices over 70. This would re-balance the Court to 6-6.

    BTW, with all the attention paid to the late Justice Ginsburg, we’ve overlooked that Justice Breyer is 82.

    Now for a hypothetical:

    Assume Biden wins, but the Democrats fail to take the Senate. then there’s no hope of any reforms at all. Now assume Justice Breyer retires or dies withing Biden’s term. I wouldn’t out it past McConnell to refuse to hold hearings or a vote, as the Court would be 6-2 in the GOP’s favor.

    They don’t need such a lopsided vote, but they can definitely keep another liberal or moderate vote off the court.

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  41. MarkedMan says:

    Congress is broken, but is it structurally broken? I’m not so sure. The structure functioned fairly well for decades. Yes, FDR seriously considered packing the court in part to end run around congress, but that threat resulted in compromises that prevented the split. Honestly, this round of badness is directly traceable to Gingrich and later Hastert, and their corruption of the Republican Party.

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  42. HarvardLaw92 says:

    @Michael Reynolds:

    The most senior justice in the majority assigns the cases to whomever he/she wishes. That’s a function of court rules which the court determines for itself. It’s a stretch and I’d argue unconstitutional to think they’re going to voluntarily sideline justices to achieve majorities.

    As for the other, regarding the verbiage of Article 3 and what it means with respect to the tenure of federal judgeships, consider it this way: how will the ultimate arbiter of what the language in the Constitution means interpret that verbiage in the context of their own tenure?

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  43. Scott F. says:

    @HarvardLaw92: The warring spouses in your analogy, I suppose. At least those in the electorate who aren’t so intractable in their loathing of the opposition that they seek reconciliation over divorce.

    This tortures your analogy somewhat, but the marriage counselor fundamentally asks the couple if they’ve considered all the ramifications of their current behaviors and outcomes should they make different adjustments to how they live. A significant number of the US citizenry has no idea of the legitimate arguments for some changes to the courts and the barriers for those changes. Public will for substantive reconciling change will never come if no one puts forth the argument that it doesn’t have to be this way even though their path forward seems insurmountable.

    The electorate may have irreconcilable differences, I don’t know. But, this staying together at each other’s throats just for the sake of the child that is The American Experiment only results in spousal abuse.

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  44. wr says:

    @HarvardLaw92: “Is it salvageable?”

    If we determine it’s not, what solution(s) are you seeing — either your preferred solutions or what you see coming down the road. If the entire democratic system is broken, is there an alternative to dictatorship by whoever can grab power?

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  45. Mu Yixiao says:

    @James Joyner:

    Yes. I addressed this, at least obliquely, in the OP. I think this only works if each Presidential term comes with two and only two appointments, regardless of vacancies that may arise.

    But wouldn’t that result in UNpacking the court over the course of time? Any death (or impeachment & removal) would lower the count by one more (two ending terms, plus the death). If each President can only fill two seats, that 3rd seat would always remain empty. Any time there was a death during a term, the number of sitting justices would be permanently reduced by one.

    A flu epidemic sweeps through the Court, and suddenly you could have a SCOTUS of one.

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  46. JohnMcC says:

    @HarvardLaw92: One would think that a politician with FDR’s legendary acumen would have expected his plan to ‘fail’ but to be effective “theater” (a word we’re also discussing). The public face that he plastered onto the SC was “nine old men” after all so his plan was fitted to that PR.

    It did apparently succeed in causing the Supremes to pull in their horns. Which as you indicate is not our goal in this moment.

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  47. MarkedMan says:

    @James Joyner: My initial reaction would be acceptance of the hold/perform differentiation would completely politicize the courts, far beyond what they are now. If Congress could pass a law that resulted in a Justice being removed from active duty, it would effectively make the Justices subject to Congressional approval and oversight on a continuing basis.

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  48. HarvardLaw92 says:

    @wr:

    It’s mostly a thought exercise for me, but it would seem that the logical solution (following the analogy) would be divorce. Since there is no real blueprint for that, I suppose how it happened would be open for debate. I genuinely hope I’m wrong about that and it’s salvageable. The electoral outcomes year after year just argue against it.

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  49. HarvardLaw92 says:

    @MarkedMan:

    My initial reaction is that is violates separation of powers

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  50. Michael Reynolds says:

    @JohnMcC:
    I guess political theater would be submitting bill after bill to legalize marijuana in California. Oh, look, there’s my box of legal weed, legally delivered and paid for by credit card.

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  51. MarkedMan says:

    @HarvardLaw92: Yeah. Essentially the much more concise way of saying what I was trying to say.

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  52. Just Another Ex-Republican says:

    Most politics is performative to one degree or another. That doesn’t mean it doesn’t have other purposes as well. For example, education and awareness.

    That said, HL92 has a very valid point. It’s ludicrously easy for the House to pass legislation for the last 10 years because they know it won’t go anywhere (witness 40 votes to repeal Obamacare, which floundered to one–barely–when it actually mattered). There is a lot of substantive legislation out there, but I would bet a significant amount of money that the vast majority of those 400 bills contain some elements that make some Democrats unhappy, but they simply went along because it didn’t matter. It will be a lot harder for Pelosi to corral her party if the Senate and President are Democrats too.

    As for the Court, I also think HL92 is mostly right. Arguing that “holding” an office doesn’t include performing the duties of the office is a stretch in the first place, AND you would have to get that past the current holders who will never go along with it. Personally I think the 1 Supreme Court justice per circuit argument is the best approach, perhaps paired with a spaced out appointment schedule (one new justice every 2 years until all circuits are accounted for) to make it seem less like packing. Splitting the 9th is a good idea too–the right wing BS about how they get overturned more than any other circuit is simply a function of size (% of decisions overturned is in the middle, but volume is the most simply because they decide far more cases than any other circuit), and it’s something the right can hardly oppose at this point. When I’m feeling extra cynical I’d re-arrange all the circuits as well. Increase the # of judges (case loads ARE too high and it takes too long to get things through because every judge has a massive backlog), then gerrymander (pack and crack) all of McConnell’s abusive lower court appointments of the last few years (via preventing Obama from appointing a lot more than just a Supreme, then rushing them all through now) into locations where they can’t do as much damage. I know, a really BAD idea in the long run, but I honestly find McConnell to be genuinely evil and believing in nothing except pure power and I want his legacy absolutely destroyed while he’s still alive so I can watch his face. Gingrich pretty much broke the House as a functioning institution, and McConnell utterly destroyed the Senate. As a bonus as far as I can tell reworking the circuit courts is completely Constitutional – the number, geography, and membership size of circuit courts are clearly a function of legislation by both text, intent, and history.

    But really I just want to see McConnell’s face when the Dems shit all over HIS court packing of the last 3 years. Bastard. (I apologize for my language).

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  53. James Joyner says:

    @HarvardLaw92:

    the electorate largely keeps sending the same people back to Congress, cycle after cycle, or worse replacing them with more partisan challengers,

    Presumably that’s at least partly explainable by gerrymandering them into safe seats?

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  54. James Joyner says:

    @Mu Yixiao:

    Any time there was a death during a term, the number of sitting justices would be permanently reduced by one.

    A flu epidemic sweeps through the Court, and suddenly you could have a SCOTUS of one.

    We’ve had a Supreme Court since 1789 and we’ve never had anything like that happen, so I’ll take my chances with their heartiness. I’d think this rule would gradually expand the Court over time, as it works out to roughly a Justice being added every two years–well faster than the historical rate of turnover.

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  55. Michael Cain says:

    @James Joyner:

    Presumably that’s at least partly explainable by gerrymandering them into safe seats?

    Partially. In many states a certain degree of gerrymandering occurs for non-partisan reasons. Eg, the state constitution requires preserving “communities of interest” which has always been interpreted as separating urban and rural areas.

    Incumbents have rather large advantages in fund raising, if for no other reason than incumbents get reelected at a ridiculous rate.

    I have always thought that name recognition plays a much larger role than it should. People in my district know who “Perlmutter” is because his name appears in the newspaper and on the TV news regularly, and because the federal government pays the costs for him to distribute periodic newsletters.

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  56. HarvardLaw92 says:

    @James Joyner:

    Possibly partly, sure. To be fair about that, I also agree with @MichealCain – there are some instances of gerrymandering that can’t entirely be reduced to partisan politics. As much as I hold Maryland up as a prime example of it being a pox on both houses, I wouldn’t want to be on any board or commission that tried to draw up districts for Maryland while avoid the partitioning and distribution of Montgomery County voters (MontCo contains a full 22% or so of all of the voters in the state).

    That having been said, I think the situation on the ground now is more indicative of the Balkanization of the electorate as a whole. It’s probably a chicken / egg scenario, but I’m inclined to believe that the fault lines between the two began to fracture long before Gingrich got anywhere near Congress. He didn’t create them – he exacerbated them.

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  57. Grewgills says:

    I don’t have time to read through all of the comments just now, so apologies if this has already been brought up, but…
    My take is that the Dems know (or the ones that matter do) that the 18 year term limit is likely to be struck down, but have written the bill such that if a part is struck down the rest remains in effect. This allows them to make a less partisan proposal that allows for court packing and if the 18 year term modification doesn’t survive that’s fine with them.

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  58. Mu Yixiao says:

    @James Joyner:

    I’d think this rule would gradually expand the Court over time, as it works out to roughly a Justice being added every two years

    Let’s go back to the basics in your post:

    * Justices serve an 18 year term
    * Every president to nominate two justices per four-year term

    For simplicity of explanation, assume that starting in next year one justice retires every 2 years. Their replacement serves for 18 years and then must retire. That’s a new justice every two years–two per presidential term. It’s a zero-sum progression (two leave per term, two added). and this only works if you deliberately stagger the judicial terms so that they end 2 per presidential term.

    Now… if for any reason a 3rd justice leaves in a 4 year period, they can’t be replaced. The limit is two. You can never catch up. Since 1960* 5 justices have chosen to retire before serving 17 years. 2 of those served less than 3 years. Those would be irreplaceable.

    If you stipulate that the currently sitting Justices can serve for life, you’ll end up expanding the court in the short term, but in a few years the old justices will retire or die and the court shrinks again–because you can only replace 2 per term. After that, it can only shrink.

    * I chose that date because no justice with fewer than 18 years on the bench died in office since then.

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  59. Pylon says:

    @HarvardLaw92: They can hold office, but they needn’t hear cases. They can be supernumary. In Canada, where there are retirement ages, this happens all the time. This does require adding judges which is consitutional.

    It may become unworkable over time, but there’s a solution to that too. There may be an appetite for a common sense constitutional amendment.

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  60. gVOR08 says:

    @HarvardLaw92:

    I’m inclined to believe that the fault lines between the two began to fracture long before Gingrich got anywhere near Congress. He didn’t create them – he exacerbated them.

    In their 2010 book Winner-Take-All Politics, Hacker and Pierson dated the shift in American politics to the mid 70s when corporations became more politically active in reaction to EPA and OSHA. But in their current book, Let Them Eat Tweets, they say Republicans didn’t really commit to the plutocratic agenda until Gingrich recognized just how much money Republicans could raise by committing to supporting the plutocrats, yet still get elected behind a faux populist front.

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  61. HarvardLaw92 says:

    @Pylon:

    In the lower courts, I’d be more inclined to go along since those are created by Congress. SCOTUS is a co-equal branch of government created by the Constitution, so Congress has no power to dictate much of anything to it beyond stripping it of jurisdiction over specific things. You’d have to convince the justices to go along with it. I’m doubtful.

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  62. gVOR08 says:

    Since I brought up Hacker and Pierson again @gVOR08: , they feel the root cause of what’s wrong with the Republican Party is our extreme wealth inequality.

    Instead, (of bipartisanship, changing primary rules, 3rd party centrism, etc.) the existence of extreme inequality and asymmetric polarization should direct us to two broad priorities: we need aggressive efforts to reform an economy whose benefits go so disproportionately to the plutocrats, and we need a more robust and inclusive democracy.

    Eventually this, and a strong whipping at the polls, would drive the Republican Party away from being a plutocratic party with a faux populist face to maybe forming an honest coalition. Over time, this would fix the Supreme Court.

    Personally, I would think real conservatives should appreciate a return to the income tax regime of the Eisenhower administration.

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  63. Speaking as an European, I suspect that there is nothing wrong with your parties, your voters or even your degree of polarization (compare to European countries who have Trotskyist or almost openly neonazi parties in parliament).

    Your problem is that you have a political system that perhaps does not work with polarization – presidentialism (probably the only presidentialist country in the world without a tradition of coups and conter-coups) + a powerful upper house + many things dependent of tradition instead of written laws + a largely aleatory way of electing your president

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  64. HarvardLaw92 says:

    @gVOR08:

    I tend to trace the beginning of the real problem to Buckley v. Valeo.

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  65. Mu Yixiao says:

    @Miguel Madeira:

    Your problem is that you have a political system that perhaps does not work with polarization

    I’m not a political historian (far from it), but I think you might have hit on something there.

    I grew in–and live in–a “battleground state”. Every election, we get looked at because we could go either way. And that just makes sense to me–because I grew up here.

    In Wisconsin, we have a long tradition of “passionate political debates at the bar”. We’ll sit at the end of the bar and we’ll be talking politics with raised voices and fire in our eyes. And it will all be about the politics, not the person.

    If my opponent is off on a tear and I notice that his beer is empty, I’ll signal the bartender to pour him a new one and put it on my tab. Regardless of party affiliations (and, remember, about half of America identifies as independent of any party), we’re neighbors.

    Last night at the bar I had a nice conversation with an ardent Trump supporter. We both said the same thing: We’re all trying to get to the same place, we’re just arguing over how to get there.

    {cue the vitriolic replies from the peanut gallery}

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  66. Just nutha ignint cracker says:

    @Michael Reynolds: When you say “by hand” what do you mean? I get my block quotes by typing “blockquote” between a left arrow and a right arrow with a forward slash added to the second sequence. Is there an easier way to do it?

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  67. Just nutha ignint cracker says:

    @JohnMcC:

    Would not be disappointed in either plan being passed. In a Congress that would put Supremes on the Bench who can feel at home in a nation of great diversity and equality. [emphasis added]

    Annnnnnnd there’s the rub. Where do we get a Congress that is going to put Supremes on the Bench at any consideration other than political advantage? Yes unfortunately, I DO think the system is that broken.

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  68. Kathy says:

    @Mu Yixiao:

    {cue the vitriolic replies from the peanut gallery}

    Just a question: what destination includes a stop at tearing children away from their parents and putting them in concentration camps?

    Inquiring minds want to know.

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  69. Kathy says:

    @Just nutha ignint cracker:

    Where do we get a Congress that is going to put Supremes on the Bench at any consideration other than political advantage?

    I hope you don’t mind. I like to respond to rhetorical questions with non-answers:

    Convince the controlling party that putting in a Supreme Court Justice that doesn’t provide them with a political advantage will result in a political advantage.

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  70. Michael Reynolds says:

    @Just nutha ignint cracker:
    There’s a tool bar above the window for typing, normally. Toggles for bold, italics, link and blockquote. I’m using Chrome on a Mac.

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  71. Dale says:

    @HarvardLaw92: how about term limits for the congresspeople? I bet that could draw some grassroots support.

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